The Key to Mediation Success
| Publication year | 2020 |
| Author | Theda (Teddy) Snyder, Esq. |
Theda (Teddy) Snyder, Esq.
Los Angeles, California
What is the key to mediation success? Like so many things in life, the answer is simple but not easy. It is preparation. Lawyers are busy. Often, tasks are left to the last minute. The lack of preparation hobbles your ability to negotiate the optimal result. The problem takes many forms, and I have seen quite a few. In this article I review several preparation mistakes the parties often make that impact whether their mediation is successful.
The applicant's attorney was walking in the hallway when he saw me sitting outside the conference room, reading a sheaf of papers. "They're paying you by the hour to sit here to read their brief?" he asked incredulously. I could only nod.
Despite my having sent explicit instructions about preparing a mediation brief, the defense did not submit one in advance. Rather, they semi-apologetically handed it to me at the beginning of the mediation. Now I was hurriedly skimming it instead of engaging with the parties. Sadly, this experience was not unique, nor limited to one side of a case or the other.
The mediation brief introduces the mediator to the case. Regardless of whether you have previously worked with this mediator, your brief is the mediator's first impression of the situation. Your brief—or the lack of one—can convey a professional grasp of the case or a lack of preparedness. An incomplete brief or a sloppy one raises doubts about the righteousness of your position.
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Mediation is the process of defining and then resolving issues. Preparing a mediation brief forces the writer to analyze the case. The mediation process is protracted when the advocates haven't taken the time to elucidate the issues. A brief doesn't have to be formal. Flowery or angry prose gets in the way. Your mediator may prefer a timely, informative e-mail message over a fancy, captioned document on pleading paper. If in doubt, ask the mediator which format they prefer. Whichever format you choose, the most helpful way to write your brief is with a subcategory for each issue, such as apportionment, industrial nature of the injury, or need for home health care.
Every brief should briefly (that's why it's called a brief) recite the facts, such as the dates of injury, affected body parts, and the injured worker's date of birth. Information should be current. If you cut and paste from a motion from four years ago, I'll notice.
State specifically...
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